PFAS Litigation Updates

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The world of PFAS litigation is quickly evolving. As regulatory scrutiny of these compounds increases, so, too, will the body of associated case law. From class actions to multidistrict litigation, this section will regularly highlight developments in PFAS-related litigation.

Content in this section does not reflect the opinion of Alston & Bird or its attorneys.

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Water Utilities Challenge EPA’s New PFAS Drinking-Water Regulations

Two water utility associations have petitioned the D.C. Circuit for review of the EPA’s first national drinking-water rule for PFAS, claiming that is arbitrary and capricious, unreasonable, and unfeasible. In doing so, the associations allege that the EPA did not rely on the best available science, follow the process mandated by Congress, or properly assess the costs of implementation when finalizing the rule. The associations also conveyed their serious concerns about the potential negative impact that the rule may have on low-income households. Manufacturing and chemical industry groups have also challenged the rule in a separate petition.

June 7, 2024 | American Water Works Association v. EPA, No. 24-1188 (D.C. Cir.).

EPA Orders U.S. Air Force and Arizona Air National Guard to Treat PFAS

In a rare step, the EPA issued a Safe Drinking Water Act (SDWA) Section 1431 unilateral administrative order to the U.S. Air Force and Arizona Air National Guard requiring them to conduct measures to abate the “actual and potential imminent and substantial threat to the health of persons presented by the presence of [PFAS] in groundwater underlying the Tucson Area Remediation Project (‘TARP’) water well field” that serves as a drinking-water source. The EPA required the submission of a PFAS water treatment plan within 60 days, which is unprecedented for PFAS. The agency previously issued an order for PFAS cleanup at the Pease Air Force Base in New Hampshire, but that was before the EPA adopted maximum contaminant levels for six PFAS and designated PFOA and PFOS as hazardous substances. The EPA’s action signals its intent to use its authority under the SDWA to order cleanups of PFAS when there is an “imminent and substantial endangerment to the health of persons” and when it believes local authorities have not acted sufficiently.

May 29, 2024 | In the Matter of The United States Air Force and Arizona Air National Guard, No. PWS-AO-2024-10.

Proposed Class Action Filed Against BIC for Alleged PFAS-Containing Razors

A group of plaintiffs filed a proposed class action against BIC, claiming that the company failed to inform its consumers that its shaving razors contain PFAS. With their suit, the plaintiffs assert claims—on behalf of a national class and a California subclass—for violations of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act, as well as claims for fraud, unjust enrichment, and negligent failure to warn.

May 15, 2024 | Butler v. BIC USA Inc., No. 4:24-cv-02955 (N.D. Cal.).

Plaintiffs’ Counsel Entitled to $956 Million in Attorneys’ Fees and Costs in PFAS Settlements

As part of the settlements reached by 3M and Dupont in the AFFF MDL, a South Carolina federal judge approved an award totaling nearly $1 billion for the plaintiffs’ attorneys’ fees and costs. The judge noted that plaintiffs’ counsel worked over 400,000 hours over four and one-half years to achieve the settlements against the two defendants.

April 23, 2024 | In re Aqueous Film-Forming Foams Products Liability Litigation, No. 2:18-mn-02873 (D.S.C.).

Wisconsin Court Voids State’s Hazardous Substance Designation for PFAS

The Wisconsin Department of Natural Resources (DNR) had a policy of treating “emerging contaminants” including PFAS as falling within the definition of “hazardous substances” under a state law pertaining to spills, without specifying which emerging contaminants or levels could trigger the spills law. The DNR’s policy was struck down by a Wisconsin state appeals court, which “conclude[d] that the DNR’s regulation of emerging contaminants as hazardous substances, and at certain concentrations, amounts to unlawfully adopted rules” that were promulgated without the proper procedures. The appeals court underscored the “fundamental principle” that laws “must give fair notice of conduct that is forbidden or required.”

March 6, 2024 | Wisconsin Manufacturers and Commerce Inc., et al. v. Wisconsin Department of Natural Resources, et al., No. 2022AP718 (Court of Appeals of Wisconsin).